McNair's attorneys seek dismissal of NCAA appeal, cite missing documents

The NCAA’s appeal in Todd McNair’s long-running defamation suit should be dismissed because the organization filed an “inadequate and incomplete record,” attorneys for the former USC running backs coach argued in a motion filed Thursday.

Earlier this week, the NCAA submitted nearly 500 pages of previously sealed documents to California’s 2nd District Court of Appeal. That left out about 200 pages of internal emails, deposition transcripts and other documents in the case related to sanctions against McNair and USC that had been sealed.

“Now, and with no effort to explain its about-face, the NCAA claims ‘never mind,’ apparently hoping that no one will notice,” the motion said, “[while] the NCAA attempts to proceed with its appeal based on an incomplete record that it earlier acknowledged would be fatal to meaningful appellate review.”

The omitted documents cataloged in Thursday’s motion include some of the inflammatory emails between members of the NCAA infractions committee that led Los Angeles Superior Court Judge Frederick Shaller to rule in 2012 that they “tend to show ill will or hatred.”

Among those are emails between Shep Cooper, Rodney Uphoff and other committee members from Feb. 22, 2010, when Cooper referred to McNair as a “morally bankrupt criminal.” It was omitted.

Also missing are portions of the transcripts from depositions of infractions committee member Dennis Thomas and former NCAA investigator Richard Johanningmeier.

In a previous court filing, McNair’s attorneys wrote that “two NCAA officials have candidly acknowledged that a finding against McNair was necessary for the penalties to be assessed against USC.” The filing referred to deposition excerpts that were not among the documents the NCAA submitted Tuesday.

“Here, there are a number of documents of an evidentiary nature … which are curiously omitted from the newly filed volumes of materials,” the motion said. “These material admissions warrant dismissal of the NCAA’s appeal.”

The motion points to at least one of the documents filed Tuesday by the NCAA -- excerpts of the organization’s case summary -- containing additional redactions on five pages and missing several other pages. McNair’s attorneys said in the motion that the move violates California’s Rules of Court.

In February, the same appellate court rejected the NCAA’s attempts to seal the documents. Now, the appellate court is scheduled to hear the NCAA’s motion to strike McNair’s complaint and dismiss the case.

USC on Wednesday said that the unsealed documents demonstrated “bias against McNair and USC by and on behalf of the NCAA and its Committee on Infractions.”

The NCAA didn’t immediately respond to a request for comment and  McNair’s attorneys declined to comment.

“In view of the NCAA’s efforts to have its cake and eat it too by pulling back sizable portions of the evidentiary record and supply this court with only those portions of the previously sealed records it concludes should see the light of day,” the motion said, “this court does not have that full evidentiary record.”

Times staff writer Gary Klein contributed to this report.

Twitter: @nathanfenno

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